Citation Nr: 1022000
Decision Date: 06/14/10 Archive Date: 06/24/10
DOCKET NO. 06-00 357 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUES
1. Entitlement to service connection for bilateral hand
disability.
2. Entitlement to service connection for bilateral foot
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Van Stewart, Counsel
INTRODUCTION
The veteran had active naval service from January 1952 to
November 1955. The evidence shows that the Veteran was
wounded in action.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a May 2005 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
These issues were remanded by the Board for additional
development in an action dated in March 2009. There having
been substantial compliance with the Board's remand orders,
the case is once again before the Board for appellate review.
FINDINGS OF FACT
1. The Veteran served aboard a combat vessel in Korean
waters in the winter of 1952-53, where his battle station was
in an exposed gun mount.
2. The Veteran has bilateral neuropathy of the hands and
feet.
3. The Veteran's bilateral neuropathy of the feet is
etiologically related to exposure to extreme cold experienced
during his period of active duty.
4. The Veteran's bilateral neuropathy of the hands is not
related to exposure to extreme cold experienced during his
period of active duty.
CONCLUSIONS OF LAW
1. The veteran has a bilateral foot disability that is the
result of disease or injury incurred in or aggravated during
active military service. 38 U.S.C.A. §§ 1101, 1110, 1154,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009).
2. The veteran does not have a bilateral hand disability
that is the result of disease or injury incurred in or
aggravated during active military service. 38 U.S.C.A.
§§ 1101, 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; and (3) that the
claimant is expected to provide. VCAA notice should be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim.
Pelegrini v. Principi, 18 Vet. App. 112 (2004). But see
Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005) (Mayfield
I), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006) (when VCAA notice follows the initial
unfavorable AOJ decision, subsequent RO actions may
"essentially cure[] the error in the timing of notice").
The Board notes that the Veteran was apprised of VA's duties
to both notify and assist in correspondence dated in April
2004, January 2005, and June 2009. Although the complete
notice required by the VCAA was not provided until after the
RO adjudicated the appellant's claims, any timing errors have
been cured by the RO's subsequent actions. Id.
Specifically regarding VA's duty to notify, the notifications
to the Veteran apprised him of what the evidence must show to
establish entitlement to the benefits sought, what evidence
and/or information was already in the RO's possession, what
additional evidence and/or information was needed from the
Veteran, what evidence VA was responsible for getting, and
what information VA would assist in obtaining on the
Veteran's behalf. The Veteran was apprised of the criteria
for assigning disability ratings and for award of an
effective date. See Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The RO also provided a statement of the
case (SOC) and a supplemental statement of the case (SSOC)
reporting the results of its reviews of the issues on appeal
and the text of the relevant portions of the VA regulations.
Regarding VA's duty to assist, the AOJ obtained the Veteran's
service treatment record (STR) file and post-service medical
records, and secured examinations in furtherance of his
claims. VA has no duty to inform or assist that was unmet.
The Veteran complains of pain in his hands and feet,
including long-standing burning sensation in his feet, that
he contends result from exposure to extreme cold while
serving in a gun turret aboard a Navy cruiser in the winter
of 1952-1953 in the waters close to shore during the Korean
conflict. The Veteran's STRs contain no record of cold
injury or related treatment during his service, and there is
no medical evidence of complaint or treatment during any
post-service presumptive period.
Of record is a buddy statement dated in May 2004 wherein a
shipmate noted that he and the Veteran served together in a
three-inch anti-aircraft gun mount that was an open mount
(i.e., open and therefore exposed to the elements), and that
most of the fighting they participated in was in Won San
Harbor, where the temperatures reached to below zero degrees
(presumably Fahrenheit), and that they often spent several
hours at a time at their station in the gun mount.
Of record are VA treatment records, including those of the
Veteran's treating podiatrist that relate to the Veteran's
diagnosed diabetes. In several of these documents the doctor
attributed the Veteran's neuropathy symptoms to his diabetes
and to pernicious anemia.
Also of record is an examination report from one of the
Veteran's private care providers, Corin Wilde, D.P.M. Dr.
Wilde diagnosed, inter alia, diabetes mellitus with
neuropathy. Noting the Veteran's claimed cold exposure in
Korea, the doctor noted that the Veteran's pain in his feet,
which has been present for years (according to the Veteran),
was likely due to extreme cold exposure. The doctor noted,
however, that it is impossible to separate how much of the
Veteran's current condition is due to diabetic neuropathy and
how much is due to his earlier cold exposure.
The principal reason for the Board's earlier remand was to
afford the Veteran with a VA cold injury protocol
examination. That examination was conducted in November
2009. After reviewing the Veteran's case file and discussing
the Veteran's reported symptoms and history of cold exposure,
the examiner reported that the Veteran suffers decreased pain
sensation in the bilateral hands and bilateral feet, as well
as skin on both feet that was both cooler than normal to the
touch and very dry. The examiner diagnosed neuropathy in the
hands and feet that adversely affects many of the Veteran's
daily activities.
The examiner had been asked to provide an opinion as to
whether it is at least as likely as not that the Veteran has
any hand or foot disabilities that are related to his averred
exposure to cold weather while serving aboard ship in Korean
waters during the winter months. In response to this
question, the examiner responded that she could not resolve
the issue without resorting to mere speculation. She went on
to say, however, that the Veteran's complaints of burning
sensation of feet for years may very well be from cold
exposure, but that she could not differentiate what is from
diabetes "or what is from so long ago," impliedly meaning
the Veteran's averred exposure to extreme cold in Korea.
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. § 3.303. Service connection may also be granted for
any injury or disease diagnosed after service, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service. 38
C.F.R. § 3.303(d). Generally, service connection requires
(1) medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. See Caluza
v. Brown, 7 Vet. App. 498 (1995).
It is not enough that an injury or disease occurred in
service; there must be chronic disability resulting from that
injury or disease. If there is no showing of a resulting
chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
Certain chronic diseases, including some organic diseases of
the nervous system, may be presumptively service connected if
they become manifest to a degree of 10 percent or more within
one year of leaving qualifying military service. 38 C.F.R.
§§ 3.307(a)(3); 3.309(a). Neither of the Veteran's claimed
disabilities meets this criterion; service connection on a
presumptive basis therefore is not warranted.
Here, there is competent medical evidence of record showing
that the Veteran has neuropathy of the bilateral hands and
bilateral feet. While there is no medical evidence of record
of any related injury or disease while in service, there is
competent circumstantial and lay evidence that the Veteran
was exposed to cold weather extremes while serving aboard
ship in the waters off Korea during the conflict there.
Accordingly, giving the Veteran the benefit of the doubt, the
Board finds that there is competent evidence of an event,
exposure to cold weather extremes while on active duty, that
could be related to the Veteran's claimed disabilities. See
38 U.S.C.A. § 1154, 38 C.F.R. § 3.102.
As regards the final element necessary to establish
entitlement to service connection, the Board finds, again
affording the Veteran with every benefit of the doubt, that
the medical evidence regarding a nexus between the Veteran's
bilateral feet disability and his exposure to cold extremes
in Korea is in relative equipoise. This is so because, while
the Veteran's VA podiatrist has attributed his neuropathy in
the feet to his diabetes and to pernicious anemia, the
Veteran's private podiatrist, Dr. Wilde, and the Veteran's
November 2009 VA examiner both stated that they could not
differentiate what symptoms are related to cold exposure, and
what symptoms are related to his diabetes. Moreover, Dr.
Wilde went further, stating that the Veteran's pain in his
feet was likely due to extreme cold exposure. Accordingly,
the Board finds that service connection is warranted for the
Veteran's claimed bilateral foot disability.
Turning to the Veteran's claim of service connection for his
bilateral hand disability, the Board finds that service
connection is not warranted. Service connection is not
warranted because, while there is competent medical evidence,
as discussed above, of a current bilateral hand disability,
and competent evidence of exposure to cold weather in
service, there is no competent and credible medical evidence
of a nexus between the current disability and the in-service
exposure to cold weather extremes. Unlike the issue related
to the feet, none of the medical providers/examiners even
suggested that there is a link between the two.
The Board acknowledges the Veteran's contention that he has a
bilateral hand disability that is related to his in-service
cold weather exposure. However, there is no evidence of
record showing that the Veteran has the specialized medical
education, training, and experience necessary to render
competent medical opinion as to the etiology of this
disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992);
38 C.F.R. § 3.159(a)(1) (2009). Consequently, the Veteran's
own assertions as to the etiology of his bilateral hand
disability have no probative value.
The Board has considered the benefit-of-the-doubt doctrine,
and, indeed has utilized it to award service connection for
the Veteran's bilateral foot disability. The Board finds,
however, that the record does not provide even an approximate
balance of negative and positive evidence on the merits in
the instance of the Veteran's bilateral hand claim. 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,
1 Vet. App. 49 (1990). Therefore, on the basis of the above
analysis, and after consideration of all the evidence, the
Board finds that the preponderance of the evidence is against
this service connection claim. The Veteran's current
bilateral hand disability is not traceable to disease or
injury incurred in or aggravated during active military
service.
ORDER
Entitlement to service connection for bilateral foot
disability is granted, subject to the law and regulations
governing the payment of monetary benefits.
Entitlement to service connection for bilateral hand
disability is denied.
________________________________
ROBERT E. SULLIVAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs